Archive for the ‘corporate liability’ Category

Michael J. Kelly (Creighton University School of Law; American Society of International Law) has published “Prosecuting Corporations for Genocide Under International Law”, Harvard Law & Policy Review, Vol. 6, No. 2, p. 339, 2012. Here’s the abstract:

The thrust of the 1948 Genocide Convention makes people accountable for committing genocide or complicity in genocide. They should not be able to hide in corporate form, and the treaty does not provide protection for corporations from prosecution. International law provides the theoretical tools for such prosecutions. However, modern international criminal tribunals do not establish jurisdiction over companies for participating in atrocities. As the authoritative interpretive body for the treaty, the International Court of Justice should issue an advisory opinion declaring that corporations are capable of committing genocide and, as such, should be tried for it. This would be a logical extension of the ICJ’s recent landmark opinion declaring that states can commit genocide.

Hamlet:
The King doth wake to-night and takes his rouse,
Keeps wassail, and the swagg’ring up-spring reels;
And as he drains his draughts of Rhenish down,
The kettle-drum and trumpet thus bray out
The triumph of his pledge.
Is it a custom?

Hamlet:
Ay, marry, is’t,
But to my mind, though I am native here
And to the manner born, it is a custom
More honor’d in the breach than the observance,

William Shakespeare’s Hamlet Act 1, scene 4, 7–16

The CBC’s Fifth Estate recently aired a program about Scouts Canada called “Scout’s Honour“. The synopsis reads:

Investigating sexual abuse in Scouts Canada

For young people across North America, Scouting offers fun, adventure and new friendships. But, given the nature of Scouting, the organization sometimes attracts men who prey on children.

In a co-investigation with the Los Angeles Times, the fifth estate looks at Scouts Canada’s controversial system for recording the names of pedophiles who have infiltrated its ranks and been removed the organization. It was known as the Confidential List.

Host Diana Swain asks the question: have all of those allegations, going back decades, been shared with proper authorities?

The fifth estate‘s groundbreaking investigation follows a very public legal battle in the U.S. where the Boy Scouts of America were forced to reveal that it often did not inform police when allegations of sexual abuse were made.

The Boy Scouts of America has since paid out millions in legal settlements. (more…)

I have published a new article in the latest issue of the Canadian Bar Association’s Canadian International Lawyer journal entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133. Here is the abstract:

This article addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest, if one accepts the premise that international human rights claims fall under the rubric of “public order” or public interest. The article then explores the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada against corporate and state actors, both from the perspective of litigation and arbitration. It concludes with an overview of recent federal legislative reforms relating to state-sponsored terrorism and international human rights standards.

Briefly, on September 17, 2010, the United States Court of Appeals for the Second Circuit, in a 2-1 split decision, ruled that the Alien Torts Statute (ATS) grants U.S. courts jurisdiction over alleged violations of international law by individuals only, not by corporations. Essentially, the majority opinion held that corporations cannot be sued under the ATS for violations of customary international law because “the concept of corporate liability . . . has not achieved universal recognition or acceptance of a norm in the relations of States with each other.” (Slip op. at 49).

The two issue presented before the U.S. Supreme Court are:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and

(2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

David Kinley and Odette Murray (University of Sydney – Faculty of Law) and Joe W. “Chip” Pitts III (Stanford Law School) have published “Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel”, Melbourne Journal of International Law, Vol. 12, No. 1, pp. 57-94, 2011/Sydney Law School Research Paper No. 11/48.

The abstract reads:

Over the past 15 years or so, we have become accustomed to assuming that corporations are proper subjects of litigation for alleged infringements of the ‘law of nations’ under the Alien Tort Statute (‘ATS’). But, in a dramatic reversal of this line of reasoning, the United States Court of Appeals for the Second Circuit in Kiobel v Royal Dutch Petroleum 2010 (‘Kiobel’), has dismissed this assumption and concluded that corporations cannot be sued under the ATS. This article explores the Court’s reasoning and the ramifications of the decision, highlighting the ways in which the Kiobel judgment departs from both Supreme Court and Second Circuit precedent. The authors take to task the critical failure of the majority in Kiobel to distinguish between the requirements of legal responsibility at international law and that which is necessary to invoke ATS jurisdiction in the US District Courts. In the context of the maturing debates over the human rights responsibilities of corporations, the authors point to the political as well as legal policy implications of Kiobel and underscore the reasons why the case has already attracted such intense interest and will continue to excite attention as a US Supreme Court challenge looms.

* Readers should take note of the recent decision of the U.S. Court of Appeals for the District of Columbia in John Doe VIII v. Exxon Mobil Corp.. U.S. Court of Appeals (D.C. Circuit, No. 09-7125, July 8, 2011)) which expressly rejected the Kiobel v. Royal Dutch Petroleum decision on the application of the ATS to corporate conduct.